Lehmann v EDM Lenox, LLC

Lehmann v EDM Lenox, LLC 2020 NY Slip Op 06858 Decided on November 19, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: November 19, 2020
Before: Gische, J.P., Mazzarelli, Moulton, Mendez, JJ.
Index No. 653609/18 Appeal No. 12428 Case No. 2020-00661

[*1]David Lehmann et al., Plaintiffs-Appellants,

v

EDM Lenox, LLC, et al., Defendants-Respondents.

The Law Office of N. Ari Weisbrot LLC, New York (Nathaniel Ari Weisbrot of counsel), for appellants.

Brief Carmen & Kleiman, LLP, New York (Richard E. Carmen of counsel), for respondents.

Order, Supreme Court, New York County (Debra A. James, J.), entered January 9, 2020, which, to the extent appealed from and appealable, granted defendant EDM Lenox's cross motion for an order cancelling a notice of pendency, unanimously affirmed, and the appeal from the portions of the order which, inter alia, granted defendant's motion for summary judgment dismissing plaintiff's breach of contract claim and for certain declaratory relief, unanimously dismissed, without costs, as moot.

In this action concerning defendant seller's right to retain plaintiff's down payment for the purchase of an apartment, plaintiff filed a notice of pendency. Here, where plaintiffs seek to [*2]recover the down payment, and not to possess the property, the lis pendens was improper and the court properly canceled it (Rose v Montt Assets, 250 AD2d 451, 452 [1st Dept 1998]); see also Hoffmann Invs. Corp. v Yuval, 33 AD3d 511, 512 [1st Dept 2006]).

The court takes notice of a subsequent amended order of the Supreme Court, dated October 13, 2020, which has been submitted to the Court by defendants without objection. In the amended order, the motion court granted in part plaintiffs' motion for reargument on procedural grounds raised sua sponte by the court. Since the amended order supercedes the January 2020 order from which plaintiffs appeal and affords them all the relief they seek on appeal, other than reinstatement of the notice of pendency, the remainder of the appeal has been rendered moot and must be dismissed (see Rolando A.G. v Marisol R.M., 172 AD3d 631 [1st Dept 2019]; Deering v State, 111 AD3d 1368 [4th Dept 2013]; Matter of Dye v Bernier, 104 AD3d 1102 [3d Dept 2013]; CPLR 5511, 5517). THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: November 19, 2020